UK - Constitution Flashcards
Nature and Sources (not in course):
Historical sources:
- Magna Carta 1215
- Bill of Rights 1689
- Act of Settlement 1701
- Acts of Union 1707
- Parliament Acts 1911 and 1949
- European Communities Act 1972
Nature and Sources (not in course):
Nature of the Constitution:
- Un-entrenched (can be changed by the normal legislative process - every act of parliament is in it).
- Uncodified (flexible and changes over time to reflect social change, there is no one central document).
- Unitary (all sovereignty is contained in parliament).
- Parl sov (parliament has absolute sovereignty and is supreme over all other institutions - courts can’t overrule and no parliament can pass laws binding future parliaments).
Nature and Sources (not in course):
Sources of the Constitution:
- Statute Law:
All acts of parliament are part of the Constitution. Some statutes deal with significant constitutional matters (The Reform Acts, The Act of Habeas Corpus 1679, the Parl Acts 1911 and 1949). - Common Law:
The unwritten law that is established by judicial precedents (the right to personal liberty, freedom of speech). - Authoritative works:
Legal authorities and jurists that have written comments on constitutional law (serve as a guide to the constitution and are thus incorporated) (e.g., Arson’s Law and customs of constitution) - Conventions:
A source that cannot be enforced by courts or are in written law, but they are precedent and help the smooth running of parliament (e.g., Salisbury Convention, executive and HoC fused). - Treaties:
Treaty is a formal agreement between states. They can have an affect on UK citizens or the branches of gov (e.g., ECA 1972, EU withdrawal Act 2018, NATO).
How the Constitution has changed since 1997 (not in course):
Under Labour 1997-2010
- House of Lords Reform
- HoL Reform Act 1999 - removed all but 92 hereditary peers (made the chamber more assertive and legitimate, with more expertise. But remains undemocratic as unelected). - Electoral reform
- More PR systems were established (EU parl, AMS Scotland and Wales, STV in NI, SV for London Mayor).
- Gives the UK more of a representative and democratic nature (although FPTP remains for Westminster elections). - Devolution
- Regional assemblies created in 1998 after referendums the year before.
- Scotland, Wales, NI, London
- Transferred some powers away from parl, but it still is sovereign. - HRA 1998
- Established fundamental human rights in law for the first time (took the ECHR and incorporated it into the UK Const).
- Gave judges more power to protect human rights and challenge gov actions, but the Act can still be amended or replaced by the gov. - Supreme Court
- Constitutional Reform Act 2005 created the SC which replaced the Law Lords as the highest court of appeal.
- Made the judiciary more independent from government.
Proposals that never happened:
- Regional Assemblies Proposal Act 1998 (to create devolution in 8 English regions + London).
- Regional Assemblies Proposal Act 2003 then started the process.
- However, after the North East England Devolution 2004 - failed by referendum with 47.7% turnout, they realised there was no demand for it (as the North East was the most enthusiastic region).
How the Constitution has changed since 1997 (not in course):
Under Coalition Gov 2010-2015:
- Fixed Term Parliament Act 2011:
- Set a date of general elections as 5 years after the previous one.
- Prior to this, PMs could call an election at any time within 5 years.
- This can be overridden with a 2/3 vote in HoC (as seen in 2017), or if the gov is defeated in a vote of no confidence (and they don’t make a new gov in 2 weeks).
- This act is irrelevant though, as Johnson failed the 2/3 vote, and then just passed ‘The Early Parliamentary General Election Act 2019’ with a simple maj and it went ahead. - Further Devolution to Wales:
- Welsh Assembly was given more law-making powers in ‘the 20 areas’ following a referendum in March 2011 - similar to some of the powers of the Holyrood. - Proposed changes (that didn’t happen):
- Reform of Westminster Electoral system (from FPTP to AV) - referendum in 2011.
How the Constitution has changed since 1997 (not in course):
Torys since 2015:
- Further devolution to Scotland:
- Following the 2014 independence referendum, further law making abilities were granted to Scotland in the Scotland Act 2016 (including income taxing powers and some welfare powers).
- Triggered the ‘West Lothian Question’, led to EVEL, where only English MPs could vote in Westminster on laws that only affected England. - European Withdrawal Act 2018:
- Repealed the EU Communities Act of 1972.
- Transferred all remaining ‘directly relevant’ EU community law into UK domestic law after departure from EU.
- Created a new category for UK Laws - ‘Retained EU Law’.
The Role and Powers of Devolved Bodies, and the Impact of Devolution:
Devolution in England:
Devolution in England:
- West Lothian Question - perceived imbalance, as non-English MPs can vote on English bills, but English MPs can’t vote on non-English bills.
- Was addressed by EVEL from 2015 to 2021.
- Now, after a second reading, a bill which involves England can only be vetoed and repealed if a majority of English MPs vote for this.
- Extended range of powers to devolved city regions (elected Mayors and city assemblies in 10 English cities).
- This had the effect of strengthening the powers of regional governments in the UK.
The Role and Powers of Devolved Bodies, and the Impact of Devolution:
Scottish Parliament and Government:
- The Scottish parl has primary legislative powers of areas - education, health, environment, law and order, income tax (limited), local government.
- Doesn’t control foreign affairs, defence or the constitution (expected powers reserved for Westminster).
- The Assembly has negative powers (anything not specified as an expected power to Westminster, they can control).
The Role and Powers of Devolved Bodies, and the Impact of Devolution:
Welsh Assembly and Government:
- The Welsh assembly have primary legislative powers over a more limited range of areas than Scotland - education, healthcare, social services, environment, local gov.
- Don’t have power over law and order, taxes, foreign affairs, defence or the Constitution.
- Don’t have negative powers (don’t control areas not specified as expected powers).
The Role and Powers of Devolved Bodies, and the Impact of Devolution:
NI Assembly and Executive:
- Have legislative powers similar to Wales, but including Justice.
- Have the same expected powers
- Have reserved powers over areas which may be transferred in the future (e.g., medical and transport matters).
- They have no varying powers.
- They do have negative powers (control over areas not specified as expected powers).
- As part of the power sharing agreement, powers must be shared between parties according to PR.
The Role and Powers of Devolved Bodies, and the Impact of Devolution:
Effects of Devolution on the UK:
- Caused significant changes in laws between countries in the UK. E.g., Scottish Free tuition fees and higher pay for teachers.
- Arguably has made the UK a Quasi-Federal system, not unitary.
- Devolution is not very well-established and has legitimacy and accountability, due to devolved bodies formed from referendums.
- Introduction of these bodies fuelled demands for more powers to be transferred to them (rise of popularity of the SNP), even independence in the case of Scotland (2014).
- More powers given to Holyrood and Welsh Assembly after 2014 Scottish independence referendum.
Debates on Further Reform (post 1997 reforms extensions?):
House of Lords Reform (elected chamber):
Elected HoL?
YES:
- It would be more democratically legitimate, so more of a right to make and challenge laws.
- Allows more representation, (could have representatives serving longer than MPs).
- Lords would be more willing to introduce legislation
- It could properly check the powers of the HoC, as it would have more legitimacy to do so.
- There would be more effective restrictions on gov power, as it would be harder for gov to pass legislation through the HoL.
NO:
- Lords currently chosen on their expertise and knowledge (would be lost).
- They are indirectly elected (through the PM).
- It could lead to a bicameral gridlock - esp if chambers are dominated by diff parties.
- We don’t need 2 chambers - the HoC is elected and has authority and Lords works well as a checking and scrutinising chamber.
- Lords would have party whips and rely on parties to get elected - less independence and neutrality.
- Harder to ensure Lords represent society.
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Debates on Further Reform (post 1997 reforms extensions?): Electoral Reform (reform FPTP to a PR system?):
YES:
- FPTP is not proportional and undemocratic
- Creates lots of wasted votes and safe seats
- Govs currently win power with 35-40% of the vote (Boris huge majority with only 43%) - not supported by the majority of the population.
- Leads to few checks and balances on gov powers as elected dictatorships (Blair first defeat in 2005).
- Power becomes concentrated too narrowly and small parties don’t get good representation, creates the 2 party system.
NO:
- Reforming was decided by the public in 2011 referendum
- FPTP gives the voters clear choice between 2 parties.
- Winning parties get overall majorities - coalitions are rare and can fulfil manifestos.
- Creates strong govs with healthy majorities.
- Extremist parties are unlikely to get seats (UKIP 2015 - 12.5% vote and 1 seat).
Debates on Further Reform (post 1997 reforms extensions?):
Devolution for England:
Devolution in England:
YES:
- Devolution has been successful and is now accepted by vast majority of people in regions (tried and tested).
- Would further address the problem of over-centralisation of power.
- Strong regional identities in areas like Cornwall/Yorkshire which can benefit from devolution.
- Addresses the ‘West Lothian Question’.
- May avoid the break up of the UK - nationalist regions will be happy to have this power and not try for independence.
- Under Barnett Formula, England receives less funding from UK taxes per capita than other UK regions.
NO:
- Power may end up being too fragmented and confusion, leading to large differences in legislation for each region.
- If an English Parliament was introduced the role and influence of Westminster will be reduced (loss of sovereignty)
- EVEL may solve the WLQ without the need for English Parl (not repealed though).
- Not the public demand for it (North East Assembly Vote 2004).
- Arguments over which regions get a devolved assembly.
- Giving regional governments powers may accelerate demands for independence.
Debates on Further Reform (should the UK Constitution be changed?):
UK Codified Constitution?
Codification:
YES:
- Provides clear rules, with less confusion as to what the Constitution means.
- It would mean formally limiting powers of the gov, addressing the problem of elective dictatorship.
- It could be policed and protected by judges, who are politically independent and neutral.
- It would allow for a stronger protection of rights, as they would be fully entrenched and more difficult to set aside.
- It would strengthen citizenship, giving people a clear idea of their rights, and the purpose and workings of the political system. it would be a source of unity.
- It would bring the UK in line with other modern democracies.
NO:
- It would be too difficult to change and become outdated.
- It would give unelected judges the power to prevent actions of elected govs
- Uncodified constitutions are organic and naturally evolving, whereas codified means more ‘legalistic’ and arbitrarily implemented.
- A codified Const is unnecessary - gov power could be checked further through strengthening existing institutions/systems.
- It may be harder for a gov to get things done and fulfil its manifesto promises.
